By David Brand
It was supposed to steer people with criminal convictions toward a second chance, but so far, a state record-sealing law has been stuck in first gear.
Though court officials estimated that hundreds of thousands of New Yorkers with criminal convictions could potentially qualify to have their records sealed under a 2017 statute, only a few hundred have benefited statewide.
In Queens, just 24 people with criminal histories have had their convictions sealed since the law went into effect, according to officials in the District Attorney’s office.
To boost the paltry number of applicants, Queens Borough President Melinda Katz and Legal Aid have organized a “Know Your Rights Week” campaign where attorneys will screen potential applicants and help them apply for sealing if they qualify.
If interventions like that drive more people to apply, the Queens County DA’s office said it will adapt to meet the demand.
“I’ll grow the unit and we’ll put the personnel necessary to meet the demand,” Executive Assistant DA Robert Masters told the Eagle. “I would have thought that by now there would be a lot more [applications].”
Masters said the Queens DA’s office was involved with the drafting of the statute and advocated for the law’s limited reach.
The limited scope of the law has prevented many people from qualifying, say various attorneys and nonprofits that work with people with criminal convictions.
“The law just isn’t that great,” said Emma Goodman, who leads Legal Aid’s record-sealing initiative. “And the people who can benefit don’t know about it.”
The law specifically enables New Yorkers with no more than two misdemeanor convictions or one felony and one misdemeanor conviction to have their convictions sealed if they have remained crime-free for ten years. Sex offenses, violent felonies, and serious felonies are not eligible for sealing.
“Generally, they have too many convictions. You can only have two in your entire criminal history,” Goodman said. “It’s affecting their rights in a significant way.”
She said that “at least three-quarters” of people who contact Legal Aid about the state law do not qualify.
Overall, the District Attorney’s office has received 65 valid conviction-sealing applications, of which 36 have been disposed, Masters said. In addition to the 24 records successfully sealed, 11 applications were denied and one was dismissed when the applicant did not show up for a hearing.
A total of 29 applications are still awaiting court action.
Each application is reviewed by FOIL and Document Production Chief Anastasia Spanakos, who tracks down old court documents, witnesses and even victims’ family members.
The amount of time that has passed since the trial — often decades — complicates the information-gathering process, Spanakos said.
“It’s very time consuming, but we have to do our due diligence,” she said.
“So far, the volume [of applicants] hasn’t been greater than I can handle with one paralegal,” she continued. “If they decide to do thousands then we’ll sit down with Legal Aid and the courts.”
Spanakos said the DA’s office has only opposed three eligible applications because of the circumstances of the original crimes.
In one case, Spanakos said, the DA’s office decided to challenge an application to seal a grand larceny conviction because the defendant had reached a plea deal after prosecutors sought armed robbery charges.
“The facts of the crime, I felt, were incredibly violent and I was not comfortable with wiping that off his slate,” Spanakos said. “He is now waiting on a hearing.”
Another applicant was charged with manslaughter and Spanakos spoke with the victim’s family members who said they did not want the man to have his record cleared.
“It’s the permanence of the loss,” Masters said. “[The family] thought he should permanently wear the fact that they took a life.”
The case never made it to court, however. The man was deemed ineligible because of other convictions that surfaced, she said.
Goodman from Legal Aid said she disagrees with the DA’s approach to challenging eligible applications.
“The statute does allow for consideration of the underlying circumstances of the originally charged crime, but the judge will make the ultimate decision,” Goodman said. “In my experience, a crime that started as a violent felony but resulted in a conviction for something so much less serious had a problem with it from the beginning.”
The stigma of criminal conviction can hinder a person’s ability to land a job or secure housing.
In a statement, Katz said “Know Your Rights Week” is designed to inform the people who do qualify and help them rebuild their lives.
“Our hope and aim with ‘Know Your Rights Weeks’ is to bolster public awareness and connect eligible New Yorkers with free legal assistance and, ultimately, relief,” Katz said. “The tireless efforts on the part of our community partners – and especially the Legal Aid Society – to equip and empower New Yorkers of their rights have a direct impact on building a better future for the growing families of Queens.”
The sessions will take place at nonprofit organization offices in Jamaica, Long Island City, Queens Village and Far Rockaway; Borough Hall in Kew Garden; and the Queens Library branch in Jackson Heights. In June, Katz hosted a successful Know Your Rights Week campaign to help Queens immigrants apply for relief, asylum or naturalization.
For the fortunate individuals who qualify, conviction sealing has had an “incredible” impact, Goodman said.
“My clients have gotten dream jobs they never could have gotten before,” she said. “I had a client who went to grad school and a client who applied for housing and moved to a better neighborhood with better schools.”
In addition to the tangible achievements, Goodman said the most dramatic impact of having a conviction sealed is the psychological relief people experience.
“Knowing they have this record that is public information weighs on them and lifting it makes them feel better about themselves and their future,” she said. “That is the most uplifting part.”
Anthony Posada, a supervisor in Legal Aid’s Community Justice Unit, said workshop attendees will hopefully share information about the law with peers or clients who do not realize they may be eligible to have their records sealed.
“A lot of people don’t even know this,” Posada said. “And I’m not sure who is sharing this in an effective way.”
For some people who do not know about the statute, the desire to seal criminal records has motivated them to pay huge sums to private attorneys who say they will guide individuals through the eligibility process.
For example, one private attorney charged clients up to $10,000 to help them get their records sealed, Posada said.
“People are taken advantage of and we’re not charging a single penny,” Posada said. “People should not have to spend large amounts of money to [have their records sealed].”
The workshops will enable lawyers, including pro bono attorneys from the law firm of Winston & Strawn, to talk with community members about the program and screen them for eligibility.
Individuals who are eligible to have their records sealed must complete a time-consuming application that includes a number of forms and requirements, including recommendation letters and certificates of disposition. The individual must demonstrate that they should “not be suffering from the barrier” of a criminal history, Posada said.
Even individuals who do not qualify to have their convictions sealed can still benefit from Know Your Rights Week. Attorneys will help clients obtain their rap sheets from the state, review the documents for errors that can be cleaned up and apply for forms of relief like a Certificate of Good Conduct, Posada said.
Legal Aid already runs similar programs in the borough and specifically works with organizations like 696 Build Queensbridge, South Jamaica’s Life Camp and Rock Safe Streets in Rockaway.
“We believe that this program will open doors that were previously shut off to those who have fallen victim to the criminal justice system,” said K. Bain, the founding director of 696 Build Queensbridge, in a statement. “In a society where mass incarceration and the privatization of prisons appear to be driving the economy one’s record being sealed for any person who has not committed a crime in 10 years and has no more than 2 convictions can make all the difference by bettering your chances at advancing your career, obtaining housing, and gaining access to resources.”
The Community Service Society Next Door Project also trains volunteers to help people with conviction histories request, review and apply for changes to their rap sheets.
Judy Whiting, the general counsel for CSS, said the sealing law is a good start but must be expanded to reach for New Yorkers with criminal histories.
“The new sealing law has already helped hundreds of New Yorkers minimize the stigma of stale criminal records. But amendments must be made as soon as possible so that it works for permanent change and more can benefit,” Whiting said. For a start, sealing under this law is porous and fragile. Far better would be to offer permanent expungement.”
Whiting said the law must take into account how substance abuse influenced past crimes and forced people with addictions to accrue numerous criminal convictions. CSS has turned away many applicants who simply do not qualify based on the current law, she added.
“The lifetime conviction eligibility limit is a major barrier that traps people whose more-than-two convictions might have stemmed from past problems, such as substance use disorder, that they have since overcome,” Whiting said. “Individuals should be permitted to seal or, better, expunge convictions no matter how many they have in their past.”